(Cross-posted; please excuse duplication.)
Here is an article by Lesley Ellen Harris on the
proposed Canadian copyright law, Bill C-60. With
permission, it is reproduced below.
Sincerely,
Amritha
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FROM THE OFFICES OF LESLEY ELLEN HARRIS Copyright, New
Media Law & E-Commerce News
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Vol. 9, No. 5, September 21, 2005 ISSN 1489-954X
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Copyright, New Media & E-Commerce News is distributed
for free by the office of Lesley Ellen Harris.
Information contained herein should not be relied upon
or considered as legal advice. Copyright 2005 Lesley
Ellen Harris. This newsletter may be forwarded,
downloaded or reproduced in whole in any print or
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that its author is acknowledged and that you cc:
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This newsletter is archived with the National Library
of Canada at:
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Dear LEH-Letter Subscriber:
Instead of our usual copyright news summary, I am
sending a copy of an article I have written on the
proposed Canadian copyright law, Bill C-60. The
article will be published in print in The Copyright &
New Media Law Newsletter, Volume 9, Issue 3, 2005,
(http://copyrightlaws.com). Hope you find the piece
informative and helpful.
Also, a quick reminder that I am teaching a number of
online courses in October and November on: Practical
International Copyright Law; Canadian Copyright Law;
Managing Copyright Issues; and, Digital Content
Management. Further information is at:
www.acteva.com/go/copyright.
CANADIAN COPYRIGHT BILL
On June 20, 2005, the Canadian Government introduced a
long-awaited bill to amend the Canadian Copyright Act.
The bill addresses short-term copyright reform issues
while the policy divisions of the government continue
to work on medium- and long-term reform issues. This
bill, numbered Bill C-60, continues the on-going
reform process in which the last major amendments were
made to the Copyright Act in 1997 (ironically in a
bill also numbered C-60.)
WIPO Treaties
In 1996, two new World Intellectual Property
Organization ("WIPO") Treaties were introduced to
provide a minimum level of protection of
digital-related copyright issues, in countries that
adhere to them. In order to comply with these
treaties, countries must ensure that their laws meet
the minimum standards in the treaties. This was the
impetus behind the U.S. Digital Millennium Copyright
Act ("the DMCA"). One of the main purposes for Bill
C-60 is to bring Canada's copyright laws up to the
minimum standards of the two WIPO treaties. To do
this, the bill includes the following amendments: .
The exclusive communication right of authors are
clarified to include control over the making available
of their content on the Internet . Sound recording
makers and performers are granted the right to control
the making available of their sound recordings and
performances on the Internet . It is an infringement
of copyright to circumvent for infringing purposes,
technological measures designed to protect copyright
works . It is an infringement to alter or remove
rights management information embedded in copyright
material, when done to further or conceal infringement
. Rights holders are granted control over the first
distribution of their content in a tangible form . The
duration of protection of photographs is the life of
the photographer plus 50 years in all circumstances .
Performers enjoy a full reproduction rights in sound
recordings . Performers are given moral rights in
their fixed and live performances
Internet Service Provider ("ISP") Liability
ISP liability is not discussed in the two WIPO
treaties and is a matter for each country to determine
on its own. Bill C-60 exempt ISPs from copyright
liability in relation to their activities when they
are acting merely as intermediaries. When an ISP
receives notice from a copyright owner that one of its
subscribers is allegedly hosting or sharing copyright
infringing content, the ISP will be required to
forward the notice to the subscriber, and to keep a
record of relevant information for a specified time.
Educational and Research Access Issues
The bill deals with specific educational and research
access issues, while other such issues are reserved
for further amendments. The government will begin a
consultation process on the issue of the educational
use of publicly available Internet material, while the
following issues are dealt with in the bill: .
Students in remote locations will be able to view a
lecture using network technology, either in real time
or at their own convenience . Content that may be
photocopied for students pursuant to a school's
blanket license with a collective society, may be
delivered to students electronically without
additional copyright liability. This will be until a
similar blanket license for electronic delivery is
available from a collective. . Academic articles may
be electronically delivered through interlibrary loan
Initial Reactions to the Bill
Like all copyright legislation, Bill C-60 satisfies
some but not all in the copyright community. The bill
was co-sponsored by Canadian Heritage Minister Liza
Frulla who stated, "These amendments strengthen our
creators and cultural industries against the
unauthorized use of their works on the Internet. This
legislation strikes a balance to serve both our
artists and users." But not all affected parties
agree with the appropriate balance of the bill. The
recording industry and ISPs are certainly happy to see
their interests protected, though it's too soon to
hear their comments on specific wording of the
legislation. The library and educational communities,
on the other hand, are likely disappointed to see
limited provisions in their interest.
Copyright Professor Michael Geist also points out some
missing elements in the bill: . Statutory damages are
not addressed (and "are desperately in need of
reform") . Moving fair dealing towards fair use is not
dealt with. "This was "recommended by a government
study more than 20 years ago." . "Elimination of crown
copyright does not merit a single mention." . "Greater
transparency for Canada's copyright collectives, which
collect hundreds of millions each year, but provide
precious little information in how that money is spent
or distributed is not addressed."
Background of the Bill
The 1997 amendments to the Canadian copyright statute
included section 92 which obligated the government to
do a comprehensive review of the Act within five
years. In response to this, in October 2002, the
report Supporting Culture and Innovation: Report on
the Provisions and Operation of the Copyright Act (the
section 92 report), was tabled in Parliament. Wide
public consultation followed that report, by the
Standing Committee on Canadian Heritage. On May 12,
2004, the Committee released its Interim Report on
Copyright Reform, which was re-adopted on November 4,
2004. On March 24, 2005, the Ministers of Industry
and Canadian Heritage jointly tabled the Government's
response to the Committee, including the Government
Statement on Proposals for Copyright Reform. To view
various copyright reform documents, see:
www.pch.gc.ca.
Bruce Stockfish Interview
On behalf of The Copyright & New Media Law Newsletter,
Lesley Ellen Harris ("LEH") recently interviewed Bruce
Stockfish, Director General, Copyright Policy,
Canadian Heritage, Government of Canada, about Bill
C-60.
LEH: What sort of public consultation on Bill C-60
will take place this fall?
BS: Bill C-60 was introduced on June 20, 2005 in the
House of Commons. It will become law only after it is
passed by both houses of Parliament. When Parliament
resumes this fall (scheduled for September 26, 2005),
it is expected that the bill will be referred to a
special legislative committee of the House of Commons
whose exclusive mandate will be to consider the bill.
The committee will likely hold a series of hearings at
which witnesses will be invited to appear to present
their views, beginning with responsible ministers and
government officials followed by interested
stakeholders representing a wide cross-section of
interests. Interested persons can request to appear
before the committee and, even if not invited, will be
able to make written submissions. This process will
likely take several weeks. The committee will then
proceed to a clause-by-clause analysis and adopt the
bill with any amendments it considers necessary
according to what it has heard. Once the bill has
been passed by the House of Commons, it will then be
referred to the Senate for similar consideration by
that chamber.
LEH: What is the expected timing for the passage of
the Bill?
BS: The legislative process for major copyright
legislation has in the past taken several months. The
government hopes to pass Bill C-60 as soon as
possible, but timing depends on a number of factors.
These include the number of stakeholders that
committees choose to hear in both houses of Parliament
and the length of consultations on the various issues.
LEH: The bill gives several new rights to copyright
holders, especially the recording industry. This has
angered many user groups. What is your response to
these groups?
BS: For the most part, the new rights are linked to
obligations in the 1996 WIPO Internet Treaties,
particularly the WPPT (WIPO Performances and
Phonograms Treaty). These include a new right of
making available for both makers of sound recordings
and performers and a new exclusive right to reproduce
performer's performances in sound recordings. On the
whole, we have not received much public opposition to
these new rights.
What most seems to cause concern with users is the
provision against the circumvention of technical
protection measures that aim to prevent unauthorized
uses of works. Many users believe that this amounts to
an access right that threatens legitimate uses of the
Internet. But the provision is crafted so that it
only applies when the circumvention is for purposes of
infringing copyright. If to lawfully access a work
there is a need to circumvent a technical protection
measure, then that circumvention will not be illegal.
Exceptions to copyright continue to apply, for
example. This policy approach represents an effort by
the government to achieve overall balance in the bill.
In fact, many rights holder groups are concerned that
this is insufficient protection and that at a minimum
anticircumvention devices should have been targeted.
There is only one departure from this approach.
Anticircumvention will be illegal for purposes of
private copying notwithstanding the current exception
in the Act for private copying. This is in recogniton
of the fact that technical protection measures
represent an effort by rights holders to reassert
control over uses of their works, whereas the premise
for the private copying regime is a loss of control.
LEH: Assuming Bill C-60 is passed, and Canada joins
the WIPO digital treaties, how will these treaties
directly benefit Canadians?
BS: How does the Berne Convention, to which Canada
has been a member for more than 70 years, benefit
Canadians? The public interest is served in promoting
artistic creation and economic innovation, balanced
with the legitimate needs of users. The WIPO Treaties
are merely meant to adapt existing protections for
creators to the Internet environment. Moreover, the
treaties, once ratified, will afford national
treatment so that Canadian works used in member
countries will be protected the same way as works of
nationals of those countries.
LEH: Both educators and librarians were disappointed
by the very limited new rights in Bill C-60. How do
you respond to these interest groups?
BS: The government has done much to finance and
promote use of the Internet for the educational
system, e.g. the Schoolnet program. But the Internet
is not a copyright-free zone. If someone chooses to
offer his or her works for free on the Internet, so be
it. But it is not because a work can be easily
accessed on the Internet that one should be able to
make whatever use they wish of that access without the
authorization of the rights holder (any more, for
example, than access to books in a public library).
The Internet is a powerful education and research
tool. Copyright clearance should not be an obstacle
to the development of its full potential. But neither
should the ability of owners of works to be
compensated be dismissed. Tools to facilitate
effective and efficient licensing of Internet material
should be explored.
The new rights provided in Bill C-60 are merely
intended to allow rights holders to better control
uses of their works in the Internet environment, but
not in a manner that upsets the balance with respect
to Internet uses. It is for that reason that existing
exceptions have also been adapted to the Internet
environment to facilitate distance education and
interlibrary loans.
The issue of educational access to "publicly
available" material on the Internet symbolizes the
challenge facing the government in addressing digital
copyright reform. Educators seek an exception whereas
rightholders seek a licensing appoach. The issue was
not included in the bill because of the inability to
agree on the Internet material that should be
considered "publicly available" and the acceptable
associated uses of that material. The government will
be pursuing this issue further with public
consultations this fall.
LEH: Is there another way to reconcile the rights of
owners and users, touching upon the issues in Bill
C-60?
BS: Policy makers have traditionally strived to
balance the interests of copyright owners and users in
two ways: first, by specifically providing for rights
in a limited fashion (there is no lending right for
literary works, for example); and second, by providing
exceptions to those specific rights. The perception
that the Internet at once threatens a loss of control
to owners and an excess of control to users presents
an entirely new public policy challenge. The
government is considering consulting on, among others,
issues such as collective licensing, secondary
liability and fair dealing (particularly in light of
the recent CCH decision of the Supreme Court of
Canada) to better address this challenge. Of course we
can only act within the constraints of the existing
international legal structure governing copyright.
LEH: Any other comments you want to add?
BS: Bill C-60 is the result of a long consultation
process that took into account the needs of both
rights holders and users. We think it meets the
standard of a balanced approach. The Bill provides
sufficient rights to rights holders to continue to
encourage the creation of new works while at the same
time enabling reasonable access. But there is no
doubt that some amendments, if only of a technical
nature, will be desirable to improve the bill.
Parliament will have the last word.
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This newsletter is prepared by Lesley Ellen Harris, a
Copyright Lawyer and Consultant. Lesley is the author
of the books Canadian Copyright Law (McGrawHill),
Digital Property: Currency of the 21st Century, and
Licensing Digital Content (ALA Editions). Lesley can
be reached at [log in to unmask], and at
http://copyrightlaws.com.
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